United States v. Chirino

06-1207-cr
USA v. Chirino
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
- - - - - - 3
August Term, 2006 4
(Argued: December 7, 2006 Decided: April 12, 2007) 5
6
Docket No. 06-1207-cr 7
_________________________________________________________ 8
UNITED STATES OF AMERICA, 9
Appellee, 10
- v. - 11
WALTER CHIRINO, 12
Defendant-Appellant. 13
_________________________________________________________ 14
Before: KEARSE, McLAUGHLIN, and STRAUB, Circuit Judges. 15
Appeal from a judgment of the United States District Court 16
for the Eastern District of New York, Denis R. Hurley, Judge, 17
convicting defendant, a previously convicted felon on probation, of 18
possessing of a firearm in violation of 18 U.S.C. § 922(g)(1). 19
Affirmed. 20
Judge McLaughlin concurs, in a separate opinion. 21
SUSAN CORKERY, Assistant United States 22
Attorney, Brooklyn, New York (Roslynn R. 23
Mauskopf, United States Attorney for the 24
Eastern District of New York, Peter A. 25
Norling, Assistant United States Attorney, 26
Brooklyn, New York, on the brief), for 27
Appellee. 28
NORMAN TRABULUS, Garden City, New York, for 29
Defendant-Appellant. 30

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KEARSE, Circuit Judge: 1
Defendant Walter Chirino appeals from a judgment of 2
conviction entered in the United States District Court for the 3
Eastern District of New York, following his conditional plea of 4
guilty before Denis R. Hurley, Judge, to one count of possession of 5
a firearm by a previously convicted felon, in violation of 18 U.S.C. 6
§ 922(g)(1). Chirino was sentenced principally to 37 months' 7
imprisonment, to be followed by three years' supervised release. On 8
appeal, he contends that the district court should have granted his 9
motion to suppress (1) the firearm, discovered in his dresser drawer 10
during a warrantless search by probation officers and other law 11
enforcement officers, and (2) a statement made in the course of his 12
arrest following discovery of the gun, arguing principally that the 13
search was not supported by reasonable suspicion, and hence was 14
unlawful, and that his statement was a product of that search. For 15
the reasons that follow, we affirm the judgment of conviction. 16
I. BACKGROUND 17
In 2001, Chirino was convicted in Suffolk County, New York 18
("Suffolk County" or "County"), of third-degree robbery, a Class D 19
felony, see New York Penal Law § 160.05 (McKinney 1999), punishable 20
by up to seven years' imprisonment, see id. § 70.00(2)(d). The 21
Suffolk County Court sentenced him to six months' imprisonment, to 22
be followed by a five-year period of probation. 23
Federal law makes it unlawful for any person to possess a 24
firearm that has been shipped or transported in interstate commerce 25

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if that person has previously "been convicted in any court of[] a 1
crime punishable by imprisonment for a term exceeding one year," 18 2
U.S.C. § 922(g)(1), regardless of the prison term actually imposed, 3
see, e.g., Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 4
113 (1983) (the word "punishable" in § 922(g) makes it "plainly 5
irrelevant . . . whether the individual in question actually 6
receives a prison term" (emphasis in original)). The present 7
prosecution was initiated after a warrantless search of Chirino's 8
bedroom in 2004, by a County probation officer and a County police 9
officer, turned up a firearm in Chirino's dresser drawer. The 10
events leading to that discovery, as found by the district court, 11
whose factual findings are largely unchallenged on appeal, and as 12
described at a suppression hearing principally by Suffolk County 13
Probation Officer José Martorell, whose testimony the district court 14
credited, were as follows. 15
A. The Conditions of Chirino's Probation 16
Among the conditions of probation imposed on Chirino by 17
the County Court in 2001 were the requirements that he notify his 18
probation officer prior to any change of address, see Suffolk County 19
Court Probation Order dated October 26, 2001 ("Probation Order"), 20
¶ 3, and that he "permit the probation officer to visit his . . . 21
place of abode or elsewhere," id. ¶ 1. Chirino was also required to 22
"[r]efrain from violating any federal, state or local law." Id. 23
¶ 4. 24
In addition, Chirino was expressly prohibited from, inter 25
alia, using and/or possessing any illegal drugs. See, e.g., id. 26

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¶ 11(e). In connection with this prohibition, he was required to 1
"[p]ermit search of [his] person" and "[p]ermit search of [his] 2
vehicle and place of abode where such place of abode is legally 3
under [his] control," with "such search[es] to be conducted by a 4
probation officer or a probation officer and his agent." Id. 5
¶¶ 11(a) and (b). Chirino was also expressly "[p]rohibited from 6
possessing any firearms, weapons or dangerous instruments," id. 7
¶ 15; and he was required to "submit to the search of home, vehicle 8
and person by a probation officer to determine compliance with this 9
prohibition," id. 10
In mid-2003, the Suffolk County Probation Office received 11
information that Chirino was a member of a street gang known as 12
MS-13. As a result, responsibility for the supervision of his 13
probation was transferred from his original probation officers to 14
County Probation Officer Matt Porter, assisted by Martorell. 15
Martorell was in charge of the probation office's "gang unit," which 16
was concerned with probationers who were members of gangs. 17
In late January 2004, Chirino informed Porter and 18
Martorell that he was moving to a new address, on Long Shore Avenue 19
in Bay Shore, New York ("Long Shore Avenue"). The probation 20
officers planned to make their first visit to Chirino's new home on 21
February 6. On February 4, however, they received information from 22
Suffolk County Police Sergeant John Oliva that caused them to 23
advance the date of that visit. 24
B. The Search for the Missing Girl 25
In late January, Oliva, who was a member of a police unit 26

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that worked jointly with the Federal Bureau of Investigation ("FBI") 1
to deal with street gangs, received information from a confidential 2
informant that a girl who appeared to be 13 or 14 years of age was 3
hanging out with members of the MS-13 gang. In communications on 4
February 1st, 2nd, 3rd, and possibly the 4th, the informant 5
indicated that the girl, whom the authorities ultimately identified 6
(hereinafter called "Bonilla"), had been seen with members of MS-13 7
on each of those days. On February 1, she had been seen with 8
approximately eight members of MS-13, several of whom the informant 9
identified by name. The informant reported that Bonilla was being 10
sexually abused by numerous members of MS-13, passed around from 11
member to member, and that she was perhaps being held against her 12
will. 13
The informant had been a confidential informant for more 14
than a year. During that period, members of MS-13 had been arrested 15
on the basis of information he provided; Oliva had verified all of 16
the informant's information and found none of it to be erroneous. 17
After speaking with his informant on February 4, 2004, 18
Oliva telephoned Porter and asked whether there was an outstanding 19
PINS warrant (i.e., a warrant for the arrest of a "person in need of 20
supervision") for Bonilla, a 14-year-old girl who had been missing 21
for two weeks. When Porter responded affirmatively, Oliva relayed 22
the information he had received from the informant and asked whether 23
any MS-13 members were probationers. Porter responded that Chirino 24
and one other County probationer were members of MS-13. Oliva 25
stated that one of the MS-13 members whom the confidential informant 26
had identified as being with Bonilla on February 1 was Chirino. 27

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Porter contacted Martorell, whose 9 a.m. to 5 p.m. shift 1
by then had ended, and the probation officers decided not to wait 2
until February 6 to visit Chirino's new home but to make their first 3
visit immediately, on the evening of February 4. Porter and 4
Martorell met at 8 p.m. with Oliva, FBI agents, and other police 5
officers, all of whom would accompany the probation officers, to 6
plan the visit to Chirino's home, as well as a visit to the home of 7
the other probationer who was an MS-13 member. At about 10:30 or 8
10:45 p.m. on February 4, Martorell went to Chirino's Long Shore 9
Avenue address, accompanied by two FBI agents and a police officer. 10
(Oliva and Porter initially went to the home of the other 11
probationer; finding that he was not at home but being allowed to 12
inspect his room and determine that Bonilla was not there, Oliva and 13
Porter shortly joined the law enforcement agents at Chirino's 14
residence.) The two purposes of the visit to Chirino's new address 15
were to determine that it was indeed his home and to determine 16
whether Bonilla was with, or had been in the company of, Chirino. 17
At Chirino's residence, the officers knocked on the front 18
door, which was answered by the owner of the house and his son 19
Edward Galdez. The officers identified themselves, asked if Chirino 20
was present, and were informed that Chirino lived in the basement. 21
Galdez escorted the officers to the basement. Knocks on an unmarked 22
door, which led to an anteroom that the officers only later learned 23
was Chirino's living room (Chirino's prior residence had consisted 24
of a single rented bedroom), went unanswered. Galdez opened the 25
door, which was not locked, and pointed to a second closed door, 26
telling the officers that it led to Chirino's bedroom. The officers 27

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passed through the anteroom, looking only from side to side for 1
safety, and knocked on that second door. After a short delay, the 2
door was opened by Chirino. 3
The bed in the small (8' x 10') bedroom was so positioned 4
that Chirino could open the door without leaving the bed. When the 5
door opened, the officers found Chirino in bed between two young 6
girls who were under the covers, dressed in night clothes; Chirino 7
wore only boxer shorts. When Chirino was asked who the girls were, 8
he stated that one was his cousin and the other was her friend. 9
However, he did not know his "cousin's" last name, or where she 10
lived, or her parents' names. Eventually, the officers learned the 11
identities of the girls, who turned out to be 13 and 14 years of age 12
(Chirino was 23). Both girls were the subjects of outstanding PINS 13
warrants, but neither of them was Bonilla. 14
In the meantime, Martorell informed Chirino that the 15
officers were going to conduct both a search for Bonilla and a 16
probation search. Martorell testified that 17
[i]f . . . there is reason to believe [a probationer 18
is] involved in gang activity, or there is a source 19
or information from . . . police that this person is 20
actually involved or is active in gang activity, 21
that would give us a reason to make sure that he is 22
complying with the conditions of probation, that he 23
has no firearms, no drugs and no alcohol. 24
After the other agents had taken Chirino to the living room and the 25
girls to another part of the basement, Martorell began searching 26
Chirino's bedroom closet, on the chance that he might find Bonilla 27
or some of her clothing or some other indication that she had been 28
there. When Oliva arrived, Martorell asked him to search the 29
dressers. 30

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As Oliva felt around in one of the dresser drawers, he 1
found a loaded .380 pistol, whose serial number had been defaced. 2
He discreetly signaled his discovery of the gun to Martorell. Oliva 3
then went into the living room and placed handcuffs on Chirino; as 4
he did so, Chirino said, "[y]ou got me." Oliva asked whether there 5
were any other guns present; Chirino responded, "[t]hat's the only 6
gun I have." 7
C. The Present Prosecution and Chirino's Suppression Motion 8
Chirino was indicted on one count of being, as a 9
previously convicted felon, in possession of a firearm in violation 10
of 18 U.S.C. § 922(g)(1), and on one count of possessing a firearm 11
with a defaced serial number, in violation of 18 U.S.C. § 922(k). 12
He moved to suppress both the gun found in the search and the 13
statements he made following that discovery. He argued that the 14
search violated his rights under the Fourth Amendment because he had 15
not voluntarily consented, that the search exceeded the scope 16
authorized by the Probation Order, and that his statements were the 17
product of the unlawful search. 18
A suppression hearing was held, at which Martorell, Oliva, 19
and others testified. In a decision announced from the bench on 20
October 7, 2005, the court denied the motion to suppress the gun and 21
the "[y]ou got me" statement. See Transcript, October 7, 2005 22
("Decision Tr."), at 27. In a subsequent order, the district court 23
granted the motion to suppress Chirino's statement "[t]hat's the 24
only gun I have," ruling that that statement was a response to a 25
question posed after Chirino had been placed in custody and before 26

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he had been given Miranda warnings. See Memorandum and Order dated 1
November 4, 2005, at 1-2, 5-6. The government has not appealed the 2
latter ruling. 3
With respect to the rulings at issue on this appeal, 4
denying Chirino's motion to suppress the gun and the "[y]ou got me" 5
statement, the court held that the officers' entry into the living 6
room of Chirino's apartment was lawful, both because it was 7
reasonable for the officers to believe that that room was not part 8
of Chirino's apartment--given that they had not previously visited 9
Chirino at that location, that the door was opened by Galdez, and 10
that the door was unmarked and unlocked--and because the information 11
with respect to Bonilla bespoke exigent circumstances. See Decision 12
Tr. 8-9, 21-22. The entry to Chirino's bedroom was ruled lawful 13
because the door to that room was opened by Chirino. See id. at 23. 14
Without making a finding as to whether or not Chirino had consented 15
to the ensuing search of his bedroom, the court found that the 16
search was lawful because it had been initiated and controlled by a 17
probation officer and was based on reasonable suspicion that Chirino 18
was violating the conditions of his probation. See id. at 11, 19
14-15, 24. The court stated: 20
The two girls were under the covers in the bed. 21
The two girls were dressed in nightclothes. The 22
defendant was dressed in boxer shorts. 23
Now, a juxtapositioning of what the officers 24
saw after the defendant opened the second door, with 25
one of the reasons, that being one of the two 26
reasons that the officers had gone to that location, 27
certainly gave rise to reasonable suspicion. 28
Reasonable suspicion of what? Reasonable suspicion 29
that the defendant was violating a condition of his 30
probation. 31

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One of the conditions of his probation is that 1
he's not to be involved in any type of criminal 2
activity. He is seen in the presence of two 3
children, female children, in a bed, under 4
circumstances that would certainly suggest that 5
inappropriate conduct was occurring. 6
Id. at 11. The court concluded that, 7
given what the officers saw once the defendant 8
opened the second door, it seems to me they 9
definitely had reasonable suspicion to believe the 10
defendant was violating conditions of his probation 11
by being inappropriately involved with underaged 12
girls, i.e., children apparently 14 years of age or 13
younger. 14
Id. at 24. 15
Further, the court reasoned that the reports, from an 16
informant of proven reliability, that Bonilla was being subjected to 17
sexual abuse by numerous members of MS-13 indicated 18
exigent circumstances. The officers have the 19
following information at the time when the search 20
was commenced. A girl has been missing for two 21
weeks. She's 14 years of age. Information from a 22
confidential informant indicates that she is being 23
abused sexually by members of the MS 13 gang. 24
The confidential informant also confirmed that 25
information on the first, the second, and the third, 26
and possibly the fourth, but certainly on the first 27
three days of February. We also have information 28
from that same informant that the defendant, along 29
with seven others, was with her on the preceding 30
Sunday. 31
Under those circumstances, it seems imperative 32
that all reasonable efforts must be taken to locate 33
the missing child. 34
Decision Tr. 24-25. 35
As to "whether the search should have ceased once it was 36
determined that neither of . . . the 14 year old girls who were in 37
bed with" Chirino was Bonilla, id. at 25, the court answered that 38
question in the negative. 39

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It's true, of course, as defendant underscores, 1
that Ms. Bonilla could not be hiding in a drawer. 2
The gun was found in a drawer. But I think that's a 3
simplistic approach to what was appropriate for the 4
officers to do under the circumstances. Ms. Bonilla 5
was missing. She was being subjected to criminal 6
conduct. 7
It may be that she was located in the bedroom, 8
but the search readily indicated she was not. But 9
that doesn't mean that it would not be reasonable to 10
believe that a further search would uncover evidence 11
that she had been there. A search of the bureau 12
might have produced, for example, items of her 13
apparel or other information that may have helped 14
the officers to find her. Which is to say, a 15
continuation of the search was reasonable under the 16
attendant circumstances. 17
Id. at 25-26. Accordingly, the district court concluded that the 18
officers' conduct did not violate the Fourth Amendment. 19
Following the court's rulings on the motion to suppress, 20
Chirino and the government entered into a plea agreement. The 21
government agreed to the dismissal of the § 922(k) count of the 22
indictment; Chirino agreed, with the approval of the court, to enter 23
a conditional plea of guilty to the § 922(g)(1) count, reserving the 24
right to appeal so much of the court's order as had denied his 25
suppression motion. 26
II. DISCUSSION 27
The touchstone of the Fourth Amendment is 28
reasonableness, and the reasonableness of a search 29
is determined "by assessing, on the one hand, the 30
degree to which it intrudes upon an individual's 31
privacy and, on the other, the degree to which it is 32
needed for the promotion of legitimate governmental 33
interests." 34
United States v. Knights, 534 U.S. 112, 118-19 (2001) (quoting 35

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Wyoming v. Houghton, 526 U.S. 295, 300 (1999)). In determining the 1
reasonableness of the search of a person who is on probation, we are 2
to follow the "general Fourth Amendment approach of 'examining the 3
totality of the circumstances,' Ohio v. Robinette, 519 U.S. 33, 39 4
(1996), with the probation search condition being a salient 5
circumstance." Knights, 534 U.S. at 118. 6
A defendant's "status as a probationer subject to a search 7
condition informs both sides of th[e] balance." Id. at 119. 8
"Inherent in the very nature of probation," which is one point on a 9
continuum of possible punishments imposed on a person who has been 10
convicted of a crime, is that "probationers do not enjoy the 11
absolute liberty to which every citizen is entitled." Id. (internal 12
quotation marks omitted). Inherent in authorized supervision is a 13
diminution of the probationer's right to privacy. See, e.g., 14
Griffin v. Wisconsin, 483 U.S. 868, 875 (1987). 15
On the other side of the scale, the government has a 16
heightened interest in conducting supervision when a person is 17
placed on probation. Part of that interest concerns the 18
probationer's rehabilitation and his reintegration into the 19
community; but another part of the government's concern is an 20
"interest in apprehending violators of the criminal law, thereby 21
protecting potential victims of criminal enterprise." Knights, 534 22
U.S. at 121. The Knights Court noted that "'the very assumption of 23
the institution of probation' is that the probationer 'is more 24
likely than the ordinary citizen to violate the law.'" Id. at 120 25
(quoting Griffin, 483 U.S. at 880, and citing statistics on 26
recidivism). It also noted that "probationers have even more of an 27

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incentive to conceal their criminal activities and quickly dispose 1
of incriminating evidence than the ordinary criminal," knowing that 2
they are subject to supervision and to punishment for probationary 3
infractions "in proceedings in which the trial rights of a jury and 4
proof beyond a reasonable doubt, among other things, do not apply." 5
Knights, 534 U.S. at 120. Accordingly, the Knights Court concluded 6
that 7
[w]hen an officer has reasonable suspicion that a 8
probationer subject to a search condition is engaged 9
in criminal activity, there is enough likelihood 10
that criminal conduct is occurring that an intrusion 11
on the probationer's significantly diminished 12
privacy interests is reasonable. 13
Id. at 121 (emphasis added). In such circumstances, the 14
reasonableness requirement of the Fourth Amendment is satisfied 15
without a warrant. See id. 16
In the present case, the district court ruled that the 17
officers' entries into the anteroom and Chirino's bedroom were 18
lawful. See Decision Tr. at 21-22. Chirino does not challenge 19
those rulings. (See Chirino brief on appeal at 4.) Nor does he 20
dispute the court's finding that "[n]o search was conducted of the 21
area behind the first door," Decision Tr. at 10, a finding that is 22
supported by the uncontradicted evidence that the officers did not 23
know this area was part of Chirino's apartment and that, in 24
proceeding through that area to the door to Chirino's bedroom, the 25
officers merely looked from side to side for safety. "[A] truly 26
cursory inspection--one that involves merely looking at what is 27
already exposed to view, without disturbing it--is not a 'search' 28
for Fourth Amendment purposes." Arizona v. Hicks, 480 U.S. 321, 328 29

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(1987). 1
Rather, Chirino contends that his Fourth Amendment rights 2
were violated by the officers' search of his bedroom including, in 3
particular, the search of his dresser drawers, arguing that the 4
search was not supported by reasonable suspicion, was not authorized 5
by the Probation Order, and was not justified by exigent 6
circumstances. Reviewing the district court's factual findings for 7
clear error and its legal conclusions de novo, and assessing the 8
reasonableness of the search in light of the totality of the 9
circumstances known to the officers at the time the search was 10
begun, we disagree. 11
A. The Conditions of Chirino's Probation and the Circumstances 12
Known or Suspected by the Officers 13
The conditions imposed on Chirino by the Probation Order 14
plainly diminished his right of privacy. Prohibited from violating 15
any federal, state, or local law, see Probation Order ¶ 4, Chirino 16
was required to permit probation officers to visit his "place of 17
abode or elsewhere," id. ¶ 1. In connection with the prohibition 18
against his use or possession of illegal drugs, see id. ¶ 11(e), he 19
was required to permit probation officers to search his person and 20
his vehicle, as well as his home to the extent that it was legally 21
under his control, see id. ¶¶ 11(a) and (b). He was also required 22
to submit to the search of his person, vehicle, and home by 23
probation officers to determine whether he was complying with the 24
prohibition against his possession of firearms or other weapons. 25
See id. ¶ 15. The district court correctly found that Chirino's 26

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"status as a probationer diminishe[d] his reasonable expectation of 1
privacy." Decision Tr. at 12. 2
The record also amply supports the district court's 3
finding that the search of Chirino's bedroom did not violate his 4
rights under the Fourth Amendment because it was, inter alia, based 5
on reasonable suspicion that Chirino was engaged in criminal 6
activity. Before the officers initiated the search, they knew that 7
Chirino was a member of the MS-13 street gang. They had information 8
originating from a reliable informant that Bonilla, a 14-year-old 9
girl for whom a PINS warrant was outstanding, had been seen 10
virtually every day for the past several days in the company of 11
members of MS-13; that she had been sexually abused by numerous 12
members of that gang; that a few days earlier, Bonilla had been seen 13
with Chirino; and that Bonilla was perhaps being held against her 14
will. In addition, upon Chirino's opening the door to his bedroom, 15
the officers had found Chirino, clad only in boxer shorts, in bed 16
with two young girls; the girls' ages appeared to be similar to 17
Bonilla's age, i.e., well below the age of consent; and the officers 18
learned that Chirino did not know the girls' surnames or their 19
addresses. These facts known to the officers prior to their search 20
plainly gave them grounds for at least a reasonable suspicion that 21
Chirino was engaged in criminal activity. 22
The fact that the officers learned while the search was 23
ongoing--and before the discovery of the gun--that neither of the 24
girls found with Chirino was Bonilla, and that Bonilla was not in 25
the bedroom closet, did not require the immediate cessation of the 26
search. Martorell had announced that he was conducting not only a 27

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search for Bonilla but also a probation search. The confirmed 1
absence of Bonilla did not lessen the grounds for suspecting that 2
Chirino had violated the terms of his probation by engaging in 3
illegal activity with the two girls who were present. Nor did the 4
absence of Bonilla diminish the authority of the probation officers 5
to search for weapons or illegal narcotics as provided by the 6
Probation Order. And the officers' knowledge that Chirino was a 7
member of the MS-13 gang, that he had been seen with Bonilla, and 8
that Bonilla was perhaps being held by MS-13 members against her 9
will justified the continuation of the search of Chirino's bedroom 10
for drugs or weapons that could be used to overcome a person's will. 11
Finally, the exigent circumstances that led the probation 12
officers to expedite their visit to Chirino's home did not abate 13
with the discovery that Bonilla was not then there. The urgency of 14
the need to find Bonilla, who was reportedly being passed around 15
from gang member to gang member for the purpose of sexual abuse, 16
remained. And the fact that Chirino had been found nearly naked in 17
bed with two other underage girls, about the same age as Bonilla, 18
increased the likelihood that the informant's report that Chirino 19
had recently been with Bonilla herself was accurate, and that 20
enhanced the possibility that Chirino might have in his bedroom 21
information relating to Bonilla's whereabouts. 22
In sum, the search of Chirino's bedroom, including the 23
furniture in that room, was justified by Chirino's diminished 24
expectation of privacy as a probationer and the officers' reasonable 25
suspicion that Chirino had engaged in unlawful activity with Bonilla 26
and the two young girls with whom he was found. 27

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B. The Alleged Noncompliance With State-Law Procedures 1
Chirino also contends that the district court should have 2
granted his motion to suppress because his "conditions of probation 3
did not authorize probation searches generally, or for clothing or 4
evidence in general, just searches for specific classes of 5
contraband: narcotics, narcotics implements, firearms, weapons, or 6
dangerous instruments" (Chirino brief on appeal at 12), and under 7
New York law, a search beyond the conditions delineated in the 8
probation agreement requires prior court authorization, see N.Y. 9
Crim. Proc. Law § 410.50(3). Again, we disagree. 10
While state-law rules and practices may inform our 11
evaluation of the totality of the circumstances, "the appropriate 12
inquiry for a federal court considering a motion to suppress 13
evidence seized by state police officers is whether the arrest, 14
search, or seizure violated the Fourth Amendment . . . . because the 15
exclusionary rule is only concerned with deterring Constitutional 16
violations." United States v. Wright, 16 F.3d 1429, 1437 (6th Cir. 17
1994); see id. at 1434 (the fact that state law "may . . . require 18
greater protection against searches and seizures than the fourteenth 19
amendment is of no avail to a defendant in federal court, under 20
prosecution for a federal crime" (internal quotation marks 21
omitted)); see also Griffin, 483 U.S. at 880 n.8 (where a search 22
passes the Fourth Amendment reasonableness test, the fact that it 23
may have violated state regulations is irrelevant to the 24
constitutional analysis); United States v. Miller, 116 F.3d 641, 25
662-63 (2d Cir. 1997) (even a state-law-based suppression order in 26
a state proceeding would not be binding on the district court in 27

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considering a motion to suppress in a federal-court proceeding), 1
cert. denied, 524 U.S. 905 (1998). 2
Thus, even assuming arguendo that the search of Chirino's 3
bedroom exceeded the scope authorized by the Probation Order and New 4
York law, that would not require the district court to find the 5
search unreasonable in light of all the circumstances discussed 6
above. 7
CONCLUSION 8
We have considered all of Chirino's arguments on this 9
appeal and have found them to be without merit. The judgment of 10
conviction is affirmed. 11

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McLAUGHLIN, Circuit Judge, concurring: 1
I agree with my colleagues that reasonable suspicion supported 2
the search at issue here. I write separately only to note my 3
continuing belief that something less than reasonable suspicion may 4
support a search of the dwelling of a felon on probation. 5
The Supreme Court has remained expressly agnostic on this 6
question. See United States v. Knights, 534 U.S. 112, 120 n.6 7
(2001). Our court, too, has noted that probationary searches may be 8
permissible if based upon reasonable suspicion, “or potentially a 9
lesser standard.” United States v. Lifshitz, 369 F.3d 173, 181 (2d 10
Cir. 2004). 11
We recently refused, however, to interpret Knights as 12
permitting suspicionless searches in the absence of a “special need” 13
beyond law enforcement, or a similar exception. Nicholas v. Goord, 14
430 F.3d 652, 666 (2d Cir. 2005). We promised to follow this “more 15
prudent” course until the Supreme Court clarified its Fourth 16
Amendment jurisprudence. Id. 17
That time has come. Last year’s decision in Samson v. 18
California, 126 S. Ct. 2193 (2006), has fatally undermined the 19
“prudent” reading of Knights. In approving the use of a general 20
balancing test for suspicionless parolee searches, the Court 21
admonished that it has “never held that [‘special needs’ scenarios] 22
are the only limited circumstances in which searches absent 23
individualized suspicion could be ‘reasonable’ under the Fourth 24
Amendment.” Id. at 2201 n.4. 25
It is not a great leap from the conditioned parole of Sampson 26
to a conditioned probation—though it may be an important one. Cf. 27

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id. at 2198 (noting that “parolees have fewer expectations of 1
privacy than probationers”). Distinctions could also be drawn upon 2
the particular release conditions imposed upon a defendant. Compare 3
id. at 2199, with Knights, 534 U.S. at 114. 4
Inevitably, however, a case will arise in which a suspicionless 5
search of a probationer occurs absent a “special need” or similar 6
exception. I believe that the propriety of that search would 7
present an open question of constitutional law in this Circuit after 8
Samson. 9

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